Delhi High Court

Sunil Kumar vs Union Of India & Ors. on 10 October, 2013

Author: Gita Mittal

$~25
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 6523/2013
                                      Date of Decision: 10th October, 2013
       SUNIL KUMAR                                 ..... Petitioner
                          Through:    Mr.S.N.Kaul and Mr.R.S.Kaushik,
                                      Advocates.

                          versus

       UNION OF INDIA & ORS.                           ..... Respondents
                     Through:         Ms.Barkha Babbar, Adv. for UOI.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MS. JUSTICE DEEPA SHARMA
                    ORDER

       %            10.10.2013

GITA MITTAL, J. (Oral)

C.M.No.14181/2013

Exemption is allowed subject to just exceptions. Application is disposed of.

W.P.(C) 6523/2013

1. By way of the present writ petition the petitioner has assailed the

order dated 18th January, 2012 passed by the disciplinary authority accepting

the enquiry report dated 27th December, 2011.

2. The petitioner was employed as a Sweeper in the CISF as back as on

01.08.1994. It is not disputed that he was awarded punishment for overstay

on 31st July, 2001, 8th May, 2008 and 9th August, 2010. In this background,

with regard to the incident occurred on 25th October, 2011, disciplinary

proceedings was conducted against the petitioner pursuant to the

memorandum of charges dated 8/9th November, 2011 wherein the following

charges under Rule 36, CISF Rules, 1969 were levelled against the

petitioner:

" Article of Charge-I On 25.10.2011 at about 2225 hrs, while on two days Medical Rest member of the Force No.9413400023 constable/sweeper Sunil Kumar beat constable/sweeper Phool Singh after coming inside the unit's Barrack and caused him grievous injury on his face. It amounted to misconduct, irresponsible behaviour and gross indiscipline.

Article of Charges-II The member of the Force No.941340083 constable/sweeper Sunil Kumar had been awarded three minor punishment during his past service. He did not improve his conduct despite been awarded these punishment. He is habitual of doing acts of misconduct."

3. In his reply, the petitioner had taken up the stand that he was on

medical rest on the fateful day i.e. on 25 th October, 2011 and therefore

denied involvement in the incident which was the subject matter of the first

charge.

4. In the disciplinary proceedings, the respondents examined ten

witnesses. No defence was led by the petitioner. The Enquiry Officer

submitted a report dated 27th December, 2011 holding that both the charges

taken were proved against petitioner. This report of the Enquiry Officer was

accepted by an order dated 18th January, 2012 of the disciplinary authority

whereby the punishment of penalty of removal from service was also

imposed against him. The petitioner filed a statutory appeal assailing the

order of the disciplinary authority which was rejected by an order passed on

31st May, 2012.

5. The revision to the Inspector General of the CISF was also rejected by

the order passed on 31st August, 2012.

6. Before us the petitioner has challenged the orders of the disciplinary

authority, appellate authority and revisionary authority primarily on the

ground that the same were supported by no reliable evidence. We find that

so far as the first charge is concerned, the prosecution has examined the

victim Phool Singh as PW10 who has unequivocally supported the

prosecution and his testimony could not be shaken by the petitioner in the

cross-examination.

7. So far as occurrence is concerned, apart from PW10 Phool Singh,

PW1- SI Rulia Ram has supported the same inasmuch as he has reached the

spot hearing the noise created by Constable Phool Singh. PW1 SI/Exe Rulia

Ram also clearly stated that he had seen Ct./Swpr. Sunil Kumar (petitioner

herein) running from the room of Const.Phool Singh and that he ran away

on his scooter.

8. It is trite that the statement of the victim, if found true, can be relied

upon to support the conviction even in a criminal case. There is no reason at

all to doubt the statement made by Const.Phool Singh. The same is

supported by contemporaneous evidence not only by SI/Exe.Rulia Ram but

also by PW3 Daya Ram who reached the spot and saw Const.Phool Singh in

an injured condition. PW9 HC/GD B.S.Singh has also deposed to the same

effect.

9. Learned counsel for the petitioner has vehemently urged that

Const.Phool Singh deserves to be disbelieved for the reason that he did not

get a medical examination conducted on the same date. This witness has

given an explanation for the same. It is has been pointed out that the

incident had occurred in the late hours of the night of 26th October, 2011.

The hospital was closed on account of it being a gazetted holiday as it was

the Diwali festival; The victim has stated that he was given first aid

treatment in the Unit Lines and that he had gone to the hospital on 27 th

October, 2011. In this regard, the NHPC doctor has confirmed the injuries

suffered by Const.Phool Singh vide a prescription slip no.11820 dated

27.10.2011 which was proved in the enquiry as Ex.PW-10/Exb-I & Exb-II.

Our attention has been drawn to this prescription slip as well, which contains

details of the injuries which PW10 Phool Singh had suffered at the ends of

the petitioner.

10. It is also noteworthy that in the cross-examination of the prosecution

witnesses, the petitioner has clearly admitted his presence at the spot when

he has questioned PW1 SI/Exe Rulia Ram to describe the clothes which he

was wearing at the time of incident. Similar questions to the other witnesses

also support the presence of the petitioner at the spot on fateful night. PW8

Const.Kuldeep Singh has also categorically stated that the petitioner had

gone to the barrack to drop him on his scooter.

11. In view of the evidence which has been led by the prosecution against

the petitioner, we are satisfied that the finding of guilt on the first charge of

the petitioner is clearly supported by the evidence on record and the

challenge thereto by the petitioner on the ground that it was based on no

evidence is misconceived and hereby rejected.

12. So far as second charge is concerned, learned counsel for the

petitioner has urged that the petitioner was penalised in the year 2001, 2008

and 2010 on the allegations that he had unauthorizedly overstayed leave. It

is submitted that minor penalties were imposed on him on all these three

occasions for these charges.

13. The petitioner is stated to have completed 18 years when he was

removed from service pursuant to the order dated 18th January, 2012. It is

submitted by learned counsel for the petitioner that the petitioner has ailing

wife and two school going children. The petitioner is stated to be also

supporting his aged and ailing parents and the entire family is stated to be at

the verge of starvation. It is submitted that apart from the alleged incident

there is no other allegation on the petitioner of misbehaviour with any force

personnel. It is contended that in these circumstances, the punishment

which has been imposed upon the petitioner causes grave injustice to him

and same is disproportionate to the allegations which were made against

him.

A prayer is made that the concerned authorities may be directed to

examine the case of the petitioner on the aspect of proportionality of the

punishment, even if the charges against him were held to be proved.

14. In view of the above, while upholding the finding of guilt of the

petitioner by the orders dated 18th January, 2012, 31st May, 2012 and 31st

August, 2012, we set aside the order dated 31st August, 2012 of the

Revisional Authority to the extent it sustains the punishment imposed on the

petitioner and direct as follows:

(i) The respondents shall re-consider the proportionality of the

sentence which has been imposed upon the petitioner.

Appropriate orders in this regard be passed within eight weeks

from today and be communicated to the petitioner.

(ii) In case, the revisional authority maintains the order of sentence,

the petitioner may seek from the respondents grant of relief of

any other kind, say in the nature of compassionate allowance

for instance under Rule 41 of the CCS (Pension) Rules, if the

same is admissible, and consider the same in the light of settled

principle.